On October 7, 2014, this Court held a trial in the criminal case of State of Delaware v. Christopher Wheeler, Case No. 1310019248. At the close of evidence, but before closing arguments, Defendant Christopher Wheeler filed a motion to dismiss and/or for judgment of acquittal (the "Motion"). Given the timing of the filing of the Motion, the Court continued the trial, and allowed the State time to submit a response to the Motion and for Mr. Wheeler to submit a reply to the State's response. The Court then held a hearing on the Motion on November 24, 2014. At that hearing, the Court also had the parties present their closing arguments relating to the trial. The Court then took the matters under advisement. This is the Court's ruling on the Motion and decision after trial.

I. PROCEDURAL HISTORY

On December 13, 2013, the Grand Jury returned an indictment (the "Indictment") against Mr. Wheeler. Through the Indictment, Mr. Wheeler was charged with twenty-five counts of Dealing in Child Pornography in violation of 11 Del. C. § 1109(4) ("Section 1109(4)"). This Court entered a scheduling order on April 8, 2014, setting the trial date in this criminal action for October 7, 2014.

On March 4, 2014, Mr. Wheeler filed a motion to suppress. On May 5, 2014, Mr. Wheeler filed an amended and superseding motion to suppress.[1] Mr. Wheeler also requested that the hearing on the Motion to Suppress be an evidentiary hearing with testimony from certain witnesses and a defense expert witness. On May 15, 2014, the State filed its response to the Motion to Suppress. On May 23, 2014, the Court held a hearing on the Motion to Suppress. At the hearing, the State presented testimony from Sergeant Kevin A. Perna of the Delaware State Police Department. Mr. Wheeler also presented testimony from his expert witness, Tami L. Loehrs. The Court held an additional hearing on the Motion to Suppress on July 11, 2014, and heard final arguments from the parties on the Motion to Suppress. At the conclusion of that hearing, the Court reserved decision on the Motion to Suppress. On September 18, 2014, this Court issued an opinion and order denying the relief sought in the Motion to Suppress.

On October 7, 2014, this Court held a trial (the "Trial") in this criminal action. At the Trial, Mr. Wheeler waived his right to a jury trial. In support of its case at the Trial, the State introduced a series of facts stipulated to by the parties contained in a Stipulation dated October 7, 2014 (the "Stipulation"), testimony from Sergeant Perna and three exhibits – (i) the curriculum vitae of Kevin Anthony Perna, EnCE, CFCE, CCFT, MBA ("States Ex. 1"); (ii) the "Christopher Wheeler Computer Forensics Report ("States Ex. 2"); and (iii) twenty-five images of child sexual exploitation obtained off of a computer of Mr. Wheeler (collectively, "States Ex. 3") . The Court admitted, without objection, States Ex. 1, States Ex. 2 and States Ex. 3. Sergeant Perna testified on behalf of the State, was subject to cross-examination by Mr. Wheeler's counsel, and later testified in the case-in-chief of Mr. Wheeler. Mr. Wheeler also had admitted, without an objection, an exhibit ('Defense Ex. 1") entitled "Unison: Making Sense of Usenet." Mr. Wheeler's counsel used Defense Ex. 1 when questioning Sergeant Perna during Mr. Wheeler's case-in-chief. After an appropriate colloquy, Mr. Wheeler exercised his constitutional rights (State and Federal) not to testify at the Trial.

At the close of the evidence, Mr. Wheeler filed the Motion. Through the Motion, Mr. Wheeler asks this Court to dismiss the pending criminal charges under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Articles 1, sections 7 and 8 of the Delaware Constitution. In the alternative, Mr. Wheeler asks the Court for a judgment of acquittal under Rule 29 of the Superior Court Rules of Criminal Procedure ("Criminal Rule 29"). Mr. Wheeler attaches three exhibits to the Motion – (i) House of Representatives State of Delaware Legislative Hall Dover Delaware 19901, Committee Meeting Minutes, Judiciary Committee, June 3, 2008; (ii) CD of audio recording of debate on Senate floor relating to passage of HB421; and (iii) Exhibit B of a search warrant issued in connection with Case No. 1307000816. Given the timing of the filing of the Motion, the Court continued the Trial, and allowed the State time to submit a response to the Motion and for Mr. Wheeler to submit a reply to the State's response. The Court then held a hearing on the Motion on November 24, 2014. At that hearing, the Court also had the parties present their closing arguments relating to the Trial. The Court then took the matters under advisement.

In coming to the decisions herein, the Court has considered the testimony presented at the Trial, States Exs. 1-3, Defense Ex. 1, the Stipulation and the parties' closing arguments. The Court has also considered the Motion, the exhibits attached to the Motion, the State's response, Mr. Wheeler's reply, and the parties' arguments made during the November 24, 2014 hearing.

II. THE PARTIES CONTENTIONS

A.Mr. Wheeler

Mr. Wheeler makes several arguments in the Motion. Mr. Wheeler contends the case should be dismissed because the Indictment presents twenty-five, Counts I through XXV, charges under Section 1109(4) and the State has alleged in each that Mr. Wheeler did intentionally compile, receive, exchange, disseminate, or possess child pornography. Mr. Wheeler then claims that because the State has not offered any evidence that "remotely suggests that Mr. Wheeler performed such acts at any point, and certainly not during October 2013, the indicted charges, under any scenario, must be dismissed."[2]

Mr. Wheeler next argues that viewing or accessing child pornography does not violate either Section 1109(4) or 11 Del. C. §1111(1) ("Section 1111(1)"). Mr. Wheeler claims that the State, at best, has established that Mr. Wheeler viewed images of child pornography, via internet newsgroups, and that these images were automatically cached to Mr. Wheeler's hard drive on his iMac computer. Mr. Wheeler contends that "viewing" child pornography, without more, is insufficient to establish that Mr. Wheeler "possessed" child pornography. In support of this argument, Mr. Wheeler relies on a series of cases from Oregon, Alaska and New York.

Alternatively, Mr. Wheeler submits that if the Court does find and hold that Mr. Wheeler possessed child pornography, the State does not have the unfettered discretion to indict Mr. Wheeler under Section 1109(4) instead of Section 1111(1). Mr. Wheeler then goes on to make legislative and double jeopardy arguments that Section 1111(1) is the statute for prosecuting claims for possession of child pornography and that Section 1109(4) prosecutions require more than mere possession of child pornography. The legislative argument is that the legislature was somehow misled as to the two statutes and the conduct proscribed under each. The double jeopardy argument asserts that the Double Jeopardy clause of the United States Constitution and the Delaware Constitution bars the State from punishing a defendant for the same conduct under different statutes.

The Motion also ask the Court for relief under Criminal Rule 29. Mr. Wheeler claims that, even when viewing the evidence in a light most favorable to the State, the Court cannot find Mr. Wheeler guilty beyond a reasonable doubt of the offenses charged in the Indictment. Mr. Wheeler contends that there is zero evidence that Mr. Wheeler knowingly possessed the twenty-five images of child pornography that were cached to his computer.

Finally, during closing arguments, Mr. Wheeler claimed that the State cannot establish that he even viewed the images contained in States Ex. 3 and that there is no evidence that he knowingly possessed these images. Mr. Wheeler therefore argues that the State has not demonstrated beyond a reasonable doubt that Mr. Wheeler possessed child pornography in violation of Section 1109(4).

B.The State

The State opposes the relief sought in the Motion. The State first argues that the Motion, except for the request under Criminal Rule 29, is procedurally barred. In support, the State notes that a motion to dismiss under Criminal Rule 12 which "attacks" the Indictment and is capable of determination without trial of the general issue should be presented prior to trial. Because Mr. Wheeler failed to move prior to trial based on alleged defects in the Indictment and provides no reason for the delay, the State contends that Mr. Wheeler's arguments relating to the Indictment are untimely.

The State then contends that the Motion should be dismissed because the evidence at Trial demonstrates that Mr. Wheeler did more than view child pornography. Instead, the State claims the evidence and all inferences drawn from the evidence demonstrate that Mr. Wheeler subscribed to newsgroups that provide access to child pornography, obtained readers that enabled him to view the child pornography and, thereafter, received child pornography, compiled it and possessed it on his computer. As such, the State argues that the law relied upon by Mr. Wheeler is not applicable here.

The State addresses Mr. Wheeler's double jeopardy argument and provides that Mr. Wheeler's analysis conflates the concept of double jeopardy and the State's ability to decide the charges to be indicted. The State takes the position that, so long as the State has probable cause, the State has the discretion to decide which charges to submit to the Grand Jury. With the facts here, the State, in its discretion, determined that probable cause existed for charges under Section 1109(4) and submitted those charges to the Grand Jury. As for double jeopardy, the State argues that Mr. Wheeler has not been charged with the same offense under two different statutes but, rather, he was charged with multiple offenses under only one statute.

The State also contends that Mr. Wheeler is not entitled to a judgment of acquittal under Criminal Rule 29. The State posits that the Court must consider the evidence and all legitimate inferences in a light most favorable to the State to determine whether the State has established a prima facia case for a finding of guilt. Using that standard, the State claims that it has presented more than enough evidence to survive a motion under Criminal Rule 29.

At the hearing on November 24, 2014, the State presented its arguments for a finding that Mr. Wheeler is guilty beyond a reasonable doubt on Counts I through XXV of the Indictment. The State relies on the testimony of Sergeant Perna, States Exs. 1-3 and applicable Delaware law. The State argues that this evidence demonstrates that Mr. Wheeler intentionally compiled and possessed child pornography, on or about October 22, 2013, in violation of Section 1109(4).

III. FACTS

In connection with the Trial, the Court heard testimony from Sergeant Perna, reviewed exhibits admitted into evidence and the Stipulation. From these, the Court makes these findings of fact for purposes of ruling on the Motion and rendering a verdict on the indicted criminal charges. While the Court also reviewed the exhibits attached to the Motion, the Court recognizes these exhibits are not evidence for purposes of rendering a verdict.

In the Stipulation, the parties have stipulated to the following facts:

1. Jurisdiction is established, in that the alleged offenses occurred in New Castle County, in the State of Delaware.

2. That the chain of custody is established, in that the items seized on October 22, 2013 from Mr. Wheeler's Tower Hill residence and office have been properly secured, and are accurately identified on pages 3-4 of Sgt. Kevin Perna's 1/7/14 report.

3. That Sgt. Perna, consistent with the protocol employed in forensic computer examinations, properly made mirror copies of the seized digital/computer devices mentioned in paragraph #2 above, and that these mirror forensic copies contain the identical information/data that would exist on the actual devices.

4. That Defendant Wheeler does not require the State to physically introduce the actual seized devices into evidence, nor the mirror forensic copies into evidence, understanding that Sgt. Perna's testimony and the 1/7/14 report capture his findings ...

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